Sentencing and the Legitimacy of Trial Justice

Ralph Henham

• Publisher: Routledge
• Year: 2013
• Print ISBN: 9780415833950
• eBook ISBN: 9781136657436
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

This book discusses the under-researched relationship between sentencing and the legitimacy of punishment. It argues that there is an increasing gap between what is perceived as legitimate punishment and the sentencing decisions of the criminal courts.

Drawing on a wide variety of empirical research evidence, the book explores how sentencing could be developed within a more socially-inclusive framework for the delivery of trial justice. In the international context, such developments are directly relevant to the future role of the International Criminal Court, especially its ability to deliver more coherent and inclusive trial outcomes that contribute to social reconstruction. Similarly, in the national context, these issues have a vital role to play in helping to re-position trial justice as a credible cornerstone of criminal justice governance where social diversity persists. In so doing the book should help policy-makers in appreciating the likely implications for criminal trials of 'mainstreaming' restorative forms of justice.

Sentencing and the Legitimacy of Trial Justice firmly ties the issue of legitimacy to the relevant context for delivering 'justice'. It suggests a need to develop the tools and methods for achieving this and offers some novel solutions to this complex problem.

This book will be a valuable resource for graduate students, academics, practitioners and policy makers in the field of criminal justice as well as scholars interested in socio-legal and cross-disciplinary approaches to the analysis of criminal process and sentencing and the development of theory and comparative methodology in this area.

1 Challenging Existing Paradigms

A core argument of this book is that the role of sentencing in criminal justice governance depends to a large extent on its perceived legitimacy.¹ More specifically, it is concerned with the relationship between sentencing outcomes and how they are perceived.² It therefore focuses on those factors that may determine whether sentences are perceived as ‘just’ by individuals or groups and, more importantly, whether and how sentencing changes their perceptions of justice, and perhaps influences their behaviour. It is argued³ that criminal justice theory is currently inadequate in explaining the significance of these issues because it does not give sufficient attention to the complex relationship that exists between the normative⁴ and social contexts of sentencing.

The concept of legitimacy

The chapter is prefaced with a preliminary section whose purpose is to elaborate the use of the concept of legitimacy as it is employed in this book.

Legitimacy and the relationship between international and domestic legal settings

The approach taken here is based on the view that there are important parallels to be drawn between the legitimacy of sentencing in international and domestic contexts. However, it may be argued that this unjustifiably conflates:

• the criminality of collective international crime with that of individual ordinary crime;
• the legitimacy of sentencing in settled domestic legal orders with those in unsettled international orders; and
• experiences of sentencing in advanced industrial democracies with those of transitional societies that constitute the locus of the bulk of atrocity crimes.

This book does not seek to draw parallels between international and domestic forms of criminality. The primary focus for the thesis is the concept of ‘legitimacy’ and its connection to punishment and sentencing, which, it is argued, is a phenomenon common to both international and domestic forms of legal order, settled or otherwise. It is not therefore seeking to make comparisons between different forms of legal order and criminality by simply juxtaposing accounts of legitimacy and its relationship to trial justice.

What is being argued is that the legitimacy of trial justice is a feature common to all legal settings that raises similar problems. However, in order to understand what it signifies in any legal setting requires profound and theoretically informed contextual analysis. Thus, the point of such analyses is not to make comparisons but to permit the discourse about legitimacy to be conducted from a position of accuracy in terms of its historical and cultural context. The only generalised assumption made about the nature of legitimacy is that its understanding in any context depends upon comprehending the complex relationship between moral and social experience, whether that perspective is individual or collective.

The reason for drawing lessons from international criminal trials in particular is that sentencing research⁵ has raised the issue of legitimacy in a very vivid and direct manner. I am not arguing that the way legitimacy has manifested itself is common to different legal settings and forms of criminality, rather that questions about legitimacy and different responses to it have highlighted the need for a greater normative awareness about the relationship between shared experience and perceptions of trial justice. For this reason, it is considered valid to consider how sentencing responds to this challenge in different settings and the extent to which it appears capable of reflecting the shared interests of different communities, whether global or local.

Hence, the juxtaposition of settled democracies against transitional societies following mass atrocity is designed to highlight that the notion of transition is in a very real sense common to both. By this I mean that the role of trial justice in transitional societies depends upon the extent to which it draws legitimacy in the eyes of local communities of interest. In this situation, trial justice is operating against a background of conflicting interests. However, to achieve credibility,⁶ in the sense that trial justice can make a positive contribution to governance, depends upon the extent to which it actually responds to shared interests, since these reflect shared moral values that impact critically upon the norms of social life. The fact that interests are diverse is common to both global and local legal settings, where the value of pluralism characteristic of post-modern societies has increased significantly in recent years.

Legitimacy and authority

Alison Liebling has recently considered the relationship between authority and legitimacy in examining the role of prison officers.⁷ Drawing on Richard Sennet'swork on authority,⁸ Liebling stresses the importance of competency and the fact that authority is normally evaluated against its capacity to achieve some higher ideal, such as fairness or justice. The shifting nature of authority, especially Sennet's description of it as a contingent and ‘interpretative process’, is consistent with the notion that the ‘appropriate’ balance between those who exercise authority and those who are subject to it is constantly changing.

Liebling links this dialogic conception of authority to unpublished work by Bottoms and Tankebe on legitimacy in which they define legitimacy as authority used rightfully, or ‘power exercised in accordance with established rules’ and values.⁹ Liebling elaborates this as follows:

Their argument, following Weber and others, is that power holders do not ‘sit back and wait’ for the subjects of power to obey them. In addition to any material, emotional or religious motives those subjected to power may have for obedience, power holders make claims to legitimacy: that is, they attempt to ‘establish and cultivate’ legitimacy on an ongoing basis ... These claims solicit a response, which may influence the form or basis for the next claim. In other words, legitimacy is not a fixed phenomenon, but constitutes ‘a perpetual discussion’, a continuing dialogue between those who hold power and the recipients. The acceptability of the power holder's claim requires appropriate attitudes as well as conduct on the part of the power holder

This notion of legitimacy as ‘dialogic’,¹⁰ dynamic or conditional resonates with the relative and contingent nature of justice. More particularly, it supports the approach taken in this book, especially the need for careful analysis of the underlying contextual influences on structured social interactions such as sentencing. The argument suggests that for legitimacy to be accorded to trial justice depends upon its being perceived as reflecting the ‘appropriate’ balance between the power holders and its recipients. I argue that several factors have combined to suggest that this balance is no longer perceived as fair or just, in the sense that trial justice fails to reflect the shared interests of diverse communities within western industrialised societies.

The nature of communitarian morality and its normative impact on the perception of trial justice need to be understood as aspects of social experience. The interests of such morally diverse communities on penal ideology and practice are little recognised at present, especially in terms of contingency and change. This book argues the need for enhancing the legitimacy of sentencing and draws a clear link between this and greater engagement with socially diverse communities that do not regard their interests as either represented or served by current manifestations of trial justice.

Legitimacy and morality

Anthony Bottoms¹¹ has usefully drawn on the distinction between positive and critical morality made by Hart¹² in considering the relationship between penal ideology and morality in criminal justice. Positive morality is shared by a given social group, whereas critical morality consists of general moral principles used to critique social institutions. As an example, Bottoms examines the interesting question of how the critical morality of the Enlightenment became the positive morality of many eighteenth-century European states.

Bottoms relates positive morality to the question of rule formation and the maintenance of social order. He justifies the analysis of moral principles with social analysis and discusses the importance of distinguishing different kinds of compliance, especially normative. This he defines as relating to the actor's response to a ‘principle’ or ‘standard’ that serves to regulate action and judgement and is supposed to reflect peoples’ expectations of behaviour.¹³ Bottoms's discussion of normative compliance is based on legitimacy, referring to the degree of moral assent to the right of the person in power to hold that power.

On the relationship between positive and critical morality, Bottoms suggests we are now in an era of developing a new positive morality, the core of which may be seen in gradually changing public attitudes: for example, drink driving. These notions are consistent with the discussion of driving-related deaths in this chapter, but also more generally, in drawing attention to the issues of contingency and change and the need for trial justice to play its part in helping to develop a coherent and publicly accepted interpretation of morality that is sensitive to criticism and able to respond positively to the justice needs of different communities of interest.

By reference to the principle of respect for others Boutellier¹⁴ goes some way towards elaborating the criteria upon which to base the development of a coherent and socially responsive positive morality in ‘moralising our culture’ by reference to the principle of respect for others. He argues that there are broadly shared common values that abhor personally harmful actions, involving cruelty, undeserved suffering, humiliation, harm infliction and exclusion, and that crime and criminal justice provide a ‘basal negative point of reference for a pluralistic morality’. Boutellier explains how the criminal law becomes a mechanism for manifesting shared values.

Again, these themes resonate with those advanced here, in the sense that this book argues for ‘moralising’ the foundations for penal ideology by reflecting shared moral values. However, I agree with Boutellier that the point of reference for recognising a pluralistic morality needs to move away from Durkheim's authority model of social solidarity. Hence, in terms of enhancing the legitimacy of trial justice, this means remoralising penal ideology and practice to ensure that it has the capacity to respond to the ‘legitimate’ justice needs of diverse moral communities, whether these are global or local.

Legitimacy and social structure

From a practical perspective, penal legitimacy often depends upon what is politically expedient. However, this is not necessarily a function of the degree of political control of the criminal process. Delmas-Marty¹⁵ argues that external relationships of dependence and independence from the political process, or relationships of the criminal process to society depend on the degree to which the process is open or closed. This issue and the response depend on each country's context. However, particularly interesting is Delmas-Marty's point that if relationships with political powers are widely diversified, then other variables come into play. The degree of access and participation is one aspect so affected, especially the notion of ‘who are the parties’.

Correspondingly, in discussing the legitimacy of trial justice it may be argued that the degree to which the structural aspects of the criminal process are distanced from political interference is critical to how it can respond to the ‘legitimate’ interests of diverse communities and social groups, whether within or beyond state boundaries. Crucially, this determines the ability of trial justice to contribute to the ‘appropriate’ balancing of interests, and is especially germane in times of economic stringency. As Delmas-Marty argues,¹⁶ in France the demand of ‘security and liberty’ is contradictory, since liberty is at risk, so the difficult balance is combining efficiency without disarming the state, whilst respecting individual rights and therefore the rule of law. Accordingly, I would argue that political imperatives to increase control over the recognition of ‘legitim...

Table of contents

• Front Cover
• Sentencing and the Legitimacy of Trial Justice
• Title Page
• Copyright
• Dedication
• Contents
• List of figures
• Table of cases
• Table of legislation
• Acknowledgements
• List of abbreviations
• Introduction
• 1. Challenging existing paradigms
• 2. Issues of theory and method
• 3. Punishment rationales in a comparative context
• 4. Discretionary power and sentencing
• 5. Procedural justice and due process
• 6. Deconstructing evidence for sentencing
• 7. Access to justice, rights and accountability
• 8. Sentencing and legitimacy in France and Italy
• 9. Sentencing and legitimacy in France and Italy
• References
• Index